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Texas Employer Liability for Temp Workers

construction-1-1193849-e1462297336122In Tractor Supply Co. of Texas, LP v. McGowan, the plaintiff sued a tractor supply distribution company and related parties for personal injuries. The case arose when a temporary staffing company assigned the plaintiff to work in the tractor supply distribution center. Employees of the center trained, supervised, and instructed him on his job duties.

The plaintiff was working as a picker on the date of the accident. Another employee was loading a pallet and pushed another pallet loaded with dog food off the rack. This landed on the plaintiff, causing serious injuries.

The plaintiff prevailed at trial. The defendant tractor supply distribution company appealed, arguing that the court had made a mistake in depriving it of the exclusive remedy defense provided by the Texas Workers’ Compensation Act.

Under the Act, a covered worker’s exclusive remedy against an employer after a work-related injury is workers’ compensation benefits. Accordingly, it argued that these benefits should be the plaintiff’s exclusive remedy if the tractor supply distribution center could show it was the plaintiff’s employer and that it had workers’ compensation insurance.

The appellate court explained that an employee can have more than one employer for the purposes of applying the Workers’ Compensation Act. Each of these employers is permitted to raise the exclusive remedy provision if it has workers’ compensation insurance.

An employee of a temp agency who is hurt while working under the supervision of a client company is considered to be conducting business both for the general employer of the temp agency and for that employer’s client. Among other things, the court considers the exercise of actual control over the details of the work to determine whether a general employee is also an employee of a client company.

Under Tex. Lab. Code Ann. § 401.012 (a), an employee includes each person in the service of someone else under an express or implied contract of hire. In an earlier case, the court had found that for the purposes of workers’ compensation, a temp agency’s employee was an employee of the client company as well.

Similarly, in this case, the plaintiff was working on the premises of the client in furtherance of its daily business, and the client directed the details of his work that caused him to be injured. He was under the supervision of the client’s employees, and he was trained by them. Accordingly, the court found that the plaintiff was in this case an employee of the tractor supply distribution company within the meaning of Section 401.012 (a).

For its permanent, full-time employees, the defendant was a non-subscriber to workers’ compensation insurance. Instead, it provided accident and injury occupational benefits plan for those employees. However, it argued that it was covered by a workers’ compensation policy procured for temporary employees like the plaintiff. In the agreement between the defendant and the temp agency, the defendant was supposed to pay a markup of 29.5% to include such items as workers’ compensation insurance.

The temp agency maintained a workers’ compensation policy with an alternate employer endorsement. This endorsement provided that while a worker like the plaintiff was in temporary employment by an alternate employer named in the schedule, both workers’ compensation insurance and employers’ liability insurance would apply as if the alternate employer were insured.

The appellate court explained that there was coverage for bodily injury by an alternate employer listed as “blanket,” even though the defendant was not specifically named on the schedule, since the temp agency had provided the name of the defendant to the insurer on a list of alternate employers. Therefore, the defendant had established it was covered, and it was entitled to the exclusive remedy defense. The trial court’s judgment was reversed.

If you are a temp worker who is hurt on the job, you should consult an experienced Texas attorney with experience in work injury cases as well as workers’ compensation to seek the best possible outcome. The legal issues raised in a temporary worker situation can be complicated. Consult the experienced San Antonio attorneys at Carabin & Shaw for more information at 1-800-862-1260.

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